Citation Nr: 1223165
Decision Date: 07/03/12 Archive Date: 07/13/12
DOCKET NO. 04-31 775A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Whether an overpayment of VA educational assistance benefits in the amount of $8,392.53 was properly created.
REPRESENTATION
Appellant represented by: Donald C. Hill, Attorney
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Counsel
INTRODUCTION
The Veteran had active military service from March 1978 to June 2002, with an additional 5 years, 10 months, and 9 days of prior active duty service.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that the Veteran had received an overpayment of education benefits in the amount of $8,392.53. The Veteran subsequently perfected an appeal as to the validity of that debt.
This issue was previously denied by the Board in an October 2007 decision. The Veteran subsequently appealed to the United States Court of Appeals for Veteran Claims (Court), and in a November 2010 Memorandum Decision, the Court vacated the Board decision and remanded the matter for readjudication. Subsequently, in July 2011 the Board remanded the issue for further development consistent with the Court's Memorandum Decision.
The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required.
REMAND
Unfortunately, additional development is still required before the Board may properly adjudicate the claim.
In a July 2011 remand, the Board noted that the overpayment at issue in the present appeal, $8,392.52, was created as a result of a fraud scheme at Ramon Magsaysay Technological University (RMTU) in the Philippines. The Board stated that following two VA Education Compliance Surveys, a field investigation by two VA Educational Compliance Survey Specialists (ECSSs), and a review a Resident Agent in Charge of the VA's Office of Inspector General (OIG), the VA concluded that sixty Veterans, including the one that is the subject of this appeal, were not regularly attending classes, but were instead receiving course credit in return for buying supplies and other "gifts" for the school and for individual instructors.
The Board noted that the current record contains summaries of the Education Compliance Surveys and field investigation, as well as a memorandum report from OIG explaining the situation at RMTU. The Board further stated that while the conclusions provided in these reports are of probative value in the Board's adjudication, pertinent to this remand, the reports may not contain underlying evidence which will permit a full and complete evaluation specific to the Veteran that is the subject of this appeal. Therefore, the Board found that a remand was necessary to obtain any additional information and evidence associated with these surveys and investigations that might contain information specific to the Veteran that is the subject of this decision, including any interviews, documentation, notes, etc., and that only after such evidence has been obtained may the Board conduct its de novo review of the record.
The remand ordered that if any of the records requested were unable to be located and/or obtained following reasonable efforts, the Agency of Original Jurisdiction (AOJ) should notify the Veteran that such records are not available, explain the efforts made to obtain to the records, describe any further action VA will take regarding the claim, and inform the Veteran that it is ultimately his responsibility for providing the evidence. Additionally, the Board ordered that if the benefit sought on appeal was not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond.
Subsequent to the Board's July 2011 remand, additional argument and submissions from the Veteran and his representative have been received and associated with the claims file. However, review of the claims file (both the physical file and the Virtual file) does not reveal what, if any, additional efforts were made to obtain information and evidence associated with the VA Educational Compliance Surveys and field investigation, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. or what, if any, additional efforts were made to obtain information and evidence associated with the review of the Resident Agent in Charge of the VA's OIG, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. In addition, there is no indication in the claims file that the Veteran was provided proper notification if records were found unavailable, explained the efforts that were made to obtain the records, or described any further actions VA would take regarding the claim.
In addition, although there is some indication in the claims file that a supplemental statement of the case was issued to the Veteran regarding this claim in November 2011, including reference in a statement of the Veteran's representative, the claims file (both the physical file and Virtual file) does not reveal a copy of the supplemental statement of the case.
The Board notes that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). As it is unclear from the record whether the Board's prior remand orders have been complied with, the Board finds it necessary to remand the claim for further development.
Accordingly, the case is REMANDED for the following action:
1. Make reasonable efforts to obtain any information and evidence associated with the VA Educational Compliance Surveys and field investigation, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile.
2. Make reasonable efforts to obtain any information and evidence associated with the memorandum of the review of a Resident Agent in Charge of the VA's OIG, including any information that pertains specifically to the Veteran such as interviews, RMTU records, etc. Any efforts to obtain these records, including any responses (negative or positive), should be included in the claims file, and requests should continue until it is determined that such records are unavailable or that further requests would be futile.
3. If any of the above records are unable to be located and/or obtained following reasonable efforts, the Agency of Original Jurisdiction (AOJ) should notify the Veteran that such records are not available, explain the efforts made to obtain to the records, describe any further action VA will take regarding the claim, and inform the Veteran that it is ultimately his responsibility for providing the evidence.
4. After completion of the above, and any other development deemed necessary, review the expanded record, to include evidence submitted since the October 2007 Board decision, and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).